Shaia v. Harvest Management Sub LLC

306 F.R.D. 268, 2015 U.S. Dist. LEXIS 48431, 2015 WL 1737890
CourtDistrict Court, N.D. California
DecidedApril 13, 2015
DocketNo. C 14-4495 PJH
StatusPublished
Cited by13 cases

This text of 306 F.R.D. 268 (Shaia v. Harvest Management Sub LLC) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaia v. Harvest Management Sub LLC, 306 F.R.D. 268, 2015 U.S. Dist. LEXIS 48431, 2015 WL 1737890 (N.D. Cal. 2015).

Opinion

ORDER GRANTING MOTION FOR CONDITIONAL CERTIFICATION OF FLSA COLLECTIVE ACTION

PHYLLIS J. HAMILTON, United States District Judge

Plaintiffs’ motion for conditional certification of a collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) came on for hearing before this court on April 1, 2015. Plaintiffs appeared by their counsel David Medby, and defendant appeared by its counsel Brian Ashe. Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion as follows.

[270]*270BACKGROUND

Named plaintiffs Tara Shaia (“Shaia”) and Eric Parker (“Parker”) are/were employed as Executive Chefs at senior retirement communities operated by defendant Harvest Management Sub LLC (“Holiday”).1 Holiday currently owns or operates approximately 300 senior living communities throughout the United States. First Amended Complaint (“FAC”) ¶ 16. Shaia has been employed at Holiday’s Bay Park senior retirement community in Pinole, California, since approximately 2005. Parker was employed at Holiday’s Las Brisas senior retirement community in San Luis Obispo, California, during 2012. See FAC ¶¶ 8,14,15.

The FLSA requires covered employers to compensate certain non-exempt employees for time worked in excess of the maximum hours set forth in the statute. See 29 U.S.C. § 207(a). Any non-exempt employee who works more than 40 hours in one week shall be paid “not less than one and one-half times the regular rate of pay at which he is employed.” 29 U.S.C. § 207(a)(1).

“[A]n action to recover [under the FLSA] may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b); see also Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1064 (9th Cir.2000). Each employee that wishes to join an FLSA collective action must opt into the suit by filing a notice of consent to become a party with the court in which the action is brought. See 29 U.S.C. § 216(b).

In the present action, plaintiffs allege that Executive Chefs have the primary duties of cooking and preparing all meals for Harvest residents; assisting other kitchen workers in the performance of their duties and/or filling in for any kitchen employees who are absent from work (including dishwashing and clearing tables); interacting with residents in the dining room to gauge resident satisfaction; pouring coffee for residents in the dining room; completing orders with suppliers of food and other goods utilized in the kitchen; and modifying menus to meet the specific resident preferences. FAC ¶8. Plaintiffs assert that Holiday intentionally miselassified the Executive Chefs as exempt from the overtime provisions of the FLSA and/or state wage and hour laws. Id. They allege that Holiday has unlawfully refused to pay plaintiffs for overtime hours worked, as required by the FLSA, FAC ¶ 12, and have otherwise failed to comply with California’s wage and hours laws.

In the present motion, Holiday asserts that it instituted an “arbitration program” for all its employees in approximately September 2013. See Declaration of Heather Bowers in Support of Opposition (“Bowers Deel.”) ¶¶ 9-11. At the time Holiday began the arbitration program, it began presenting each new employee with the arbitration agreement for signature at the time of hire. Bowers Deck ¶ 11 & Exh. H. In mid-December 2013, Holiday began mailing the arbitration agreement to each then-current employee along with materials explaining that the agreement would become effective in early January 2014 unless the employee signed and submitted an opt-out form. Id. ¶ 10 & Exh. D.

The arbitration agreement mandates arbitration of all employment-related disputes and contains a broad class action (or other representative action) waiver clause. Id. & Exhs. D, H. Some Executive Chefs executed agreements as part of the hiring process. Id. ¶ 11. Others simply did not opt out of the agreement when it was rolled out to incumbent employees. Id. ¶ 10. Holiday claims that more than 70% of the members of the putative class are bound by these agreements. Barger Deck ¶¶ 4-5.

Holiday asserts further that in November 2014 (after the present lawsuit was filed), it instituted a limited settlement campaign which it claims was permitted by Chindarah v. Pick Up Stix, Inc., 171 Cal.App.4th 796, 803, 90 Cal.Rptr.3d 175 (2009) (statutory right to receive overtime pay embodied in Labor Code § 1194 is unwaivable pursuant to Labor Code § 206.5, although employee can agree to compromise/release claim to past [271]*271overtime wages as part of settlement of bona fide dispute over those wages).

In November 2014, Holiday mailed an explanatory cover letter and a settlement offer to each putative California member (except for Shaia and any putative class member who had signed a release). Bowers Deel. ¶ 4. To accept the settlement, the Executive Chefs had only to sign and return the release. Id. In part, the release provided that the employee agreed “not to file any lawsuit or administrative complaint about any Claims released by this Agreement,” except for administrative complaints not seeking monetary recovery, and also agreed “not to participate in any representative lawsuit that asserts any of the Claims released by this Agreement.” Id. ¶¶ 4, 6, Exhs. B, C.

Some Executive Chefs responded with a request for a higher settlement payment, and Holiday consented to these requests. Id. ¶ 5. In addition, some of the Executive Chefs were sent “live checks,” with a note saying that they could accept the settlement and agree to release their claims by cashing the cheeks, which some did. Id. ¶ 6. Holiday asserts that to date, 88 California Executive Chefs have accepted the settlement offer. Id. ¶ 7.2

Shaia filed the present action as sole named plaintiff, on October 18, 2014. On October 29, 2014, the parties stipulated that the date for Holiday to respond to the complaint would be December 1, 2014. On October 31, 2014, Shaia filed a consent-to-join form. On November 5, 2014, Shaia filed a eonsent-to-join form for Amanda Anna Cul-trona (“Cultrona”). On November 12, 2014, Shaia filed a motion for conditional certification of the collective action. On November 13, 2014, the court stayed further briefing of the certification motion and vacating the noticed hearing date, on the basis that the parties had not yet appeared for the initial case management conference (“CMC”) and no pretrial schedule had been set.

On December 1, 2014, the day its response to the complaint was due, Holiday filed a motion to dismiss. On December 3, 2014, Shaia filed a motion requesting that the pending certification motion be heard on shortened time, but the court denied the motion.

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306 F.R.D. 268, 2015 U.S. Dist. LEXIS 48431, 2015 WL 1737890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaia-v-harvest-management-sub-llc-cand-2015.